Last week, cross-Party Peers debated the ‘Do No Harm’ amendment to the EU (Withdrawal) Bill in the House of Lords, and FPH’s Senior Policy Officer was there to watch. A ministerial assurance that there will be no rollback of public health standards is welcome. We now call on the Government to put that assurance on the face of the Bill.

Responding at the despatch box on behalf of the Government, Lord Duncan made a ministerial commitment to the spirit of the amendment, assuring the House that “there will be no rollback of [public health] standards”. The Government’s “intention to secure the highest possible engagement on matters of wider public health” will, he set out, be a “cornerstone” of the Brexit negotiations, and the UK’s leadership role in public health will continue to be a “beacon” to the EU.

Yet this ministerial reassurance stops one step short of a simple, necessary, and, as Baroness Jolly asserted, “Brexit-neutral”, commitment to put on the face of the Bill the “high level of human health protection” that would guarantee its practical effect – to protect against a gradual erosion of our vital public health legislation, policy and practice. As former Coalition health minister Baroness Northover observed, if it is the Government’s intention to not roll back on public health standards, then it should “enshrine that in the Bill”.

In calling on Lord Warner to withdraw the ‘do no harm’ amendment, the Minister reasoned that such a commitment is unnecessary, since it is already Government policy, simply replicating the Secretary of State’s existing duty to protect the public’s health. In fact, the amendment is broader than this duty in a number of important ways supportive of the Government’s intention. And, at committee stage, a large number of cross-party peers united to outline how.

Lead Peer Lord Warner outlined that the duty to ‘do no harm’ is placed on the whole of government, including a wide range of public authorities – a very important distinction that is far broader than the Secretary of State’s existing duty. It further covers, as Baroness Jolly set out, the whole of the UK, “irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh”. It reminds a wide range of interests that they must continue to protect and ‘do no harm’ to public health.

The public need, peers stressed, an “effective legislative provision to challenge in court the Government, devolved administrations and public bodies when they fall down on the job of protecting public health”. Landmark cases, such as the failed challenge by the tobacco industry to the Standardised Packaging of Tobacco Products Regulations 2015 show that the amendment, which is based on the high level of protection under Article 168 the Treaty of Lisbon, is such an effective legislative provision.

In that example, Article 168 was used to interpret EU tobacco products law as well as the powers to implement it. Article 168, the High Court emphasised in its judgment, places the protection of public health “at the epicentre of policy making”. In this way UK courts would be under no misapprehension about what Parliament expects them to continue doing after Brexit.

While the Minister offered assurance that the Government will be addressing existing protections for public health as part of the negotiations, Conservative Peer and Chair of the Committee on Climate Change, Lord Deben, cautioned that whether or not the UK upholds the highest standards of public health “will not be part of the negotiation at all”. We cannot, he made clear, have a system whereby law is “affected by the whims—or sensible policies—of Ministers”.

The EU (Withdrawal) Bill, Baroness Jolly made clear, “is where our constitutional stability and certainty will be secured within the UK legal system”, and is where the amendment should sit. It would not be sufficient, as Lord Hunt asserted, for the duty to be placed within a “theoretical health and social care Bill which may be introduced” at some future point. Peers further agreed that health, alongside the security of the nation and our economy, are surely the most important duties of any Government.

The duty would also be supportive of the Department of Health and Social Care in ensuring that the public’s health is a key part of the Brexit negotiations. Baroness Jolly noted regret among Peers that the Secretary of State for Health and Social Care “is not a member of the Cabinet committee for EU exit and trade”.

An issue of particular concern, the negotiation of future free trade agreements, was raised by Peers. While the Minister offered reassurance that our “values and principles [will not be] traded away”, Lord Brooke focused attention on the 760 treaties with 168 countries that the Government will need to negotiate – many of which will affect the public’s health and our national health service. Baroness Northover warned that public health standards “could be out of the window” should the UK decide to lower them “in an effort to increase competitiveness”.

Baroness Finlay noted the unprecedented and co-ordinated effort by transatlantic think tanks to secure the “ideal” trade arrangements “which would involve the UK diluting, for example, its existing standards on food safety”. The precautionary principle, she said, may be under serious risk. In turn, Lord Warner asserted that the duty to ‘do no harm’ has already been used in the High Court to determine the standard according to which freedom to trade versus public health is balanced.

Ultimately, while a ministerial reassurance is welcome, the Minister cannot offer reassurances that we have nothing to worry about while at the same time making clear that future Governments might decide on a different path, one perhaps that didn’t put the health of the people of this nation at its heart.

This amendment does not seek to preserve EU law and regulation. It simply ensures we have some legal precedent and interpretative guidance on which to draw when protecting the public’s health in the future. British courts, on the basis of our doctrines of parliamentary sovereignty, will decide the future interpretation of the law. This, as Baroness Jolly put it, “should give remainers a rosy glow [while] Brexiteers will be grateful that the amendment puts a marker down: British law for British people.”

In closing her speech, Baroness Neuberger – former CEO of the King’s Fund and Fellow of FPH – said that she could not “remember the public health community coming so strongly together on anything since tobacco packaging”. As we approach the report stage of the Bill in mid-April (when peers get a chance to vote on amendments), we need your support more than ever and ask again for your help. There are a number of ways in which you can get involved:

1. Tweeting your support for the amendment using #DoNoHarm and following @FPH
2. Talking to your professional networks about the amendment and encouraging their support
3. Speaking about the amendment at any conferences or events you’re attending
4. Talking to Parliamentarians you are in contact with and, if possible, introducing them to FPH
5. Sharing intelligence on grant funding opportunities enabling us to do bigger and better things.

The start of 2018 has been an exciting time to work with the Faculty of Public Health. In a team of policy and communications specialists, registrars and a hugely experienced advisory board, we’ve spearheaded a campaign to ensure that Brexit, one of the biggest public health issues facing this country, will ‘do no harm’ to public health.

I applied to join the team in December, realising that this was going to be a real opportunity to learn about influencing national policy as part of my registrar training – and it’s proved to be exactly that. Brexit is a watershed moment and at FPH we’ve been campaigning to make sure that the assurances made about post-Brexit public health are set out in legislation as part of the EU (Withdrawal) Bill.

On the 31 January, it was thrilling to see Crossbench Peer Lord Crisp, former CEO of the NHS, make the case for a ‘do no harm’ amendment to the EU (Withdrawal) Bill during its Second Reading. (This was the moment Peers could debate any aspect of the Bill and signal their intention to make amendments.)

The next day, Lord Warner tabled it as an amendment to the Bill which will be discussed at Committee Stage on or around the 26 February. This is when every line of the bill is scrutinised and proposed amendments are voted upon. I’m proud to be part of the team that has supported Lord Warner and co-signatories Lord Patel, Lord Hunt of Kings Heath and Baroness Jolly who are now working tirelessly to back this amendment in order to secure our existing high level of public health.

So what exactly is the ‘do no harm’ amendment and why do we need it?

The ‘do no harm’ amendment will guarantee and protect the health of future generations as we leave the EU. While the current Secretary of State for Health has outlined the Government’s commitment to ‘maintain participation in European cooperation on disease prevention and public health’ – an assurance that is appreciated – conversations with the public health community have highlighted that concerns still exist about the potential impact of the Bill on the public’s health. Without the safety net of EU law, and in the context of significant cuts to public health and wider health budgets, we fear the gradual erosion of our existing high level of vitally important public health legislation, policy and practice.

If included in the Bill, this line of legislation would be a golden opportunity for the Government to provide much-needed reassurance to the health community that Brexit will ‘do no harm’ to the public’s health and will not put increasing pressure on the NHS.
We have made huge progress in public health during our time in the EU and the public needs assurance that their health is of paramount importance as we leave. The ‘do no harm’ amendment could be the most important piece of legislation we see passed in our lifetime.

Please join FPH in supporting this amendment and encourage the wider public health community to do the same. FPH will be tweeting throughout the Committee Stage debate, so please add your support by following @FPH on Twitter and using the hashtag #donoharm.

Disclaimer

The aim of this blog is to encourage discussion and debate on public health issues. The views expressed here are the personal views of authors, and the content does not reflect the official position of the Faculty of Public Health. However, discussion generated here may be used to influence the development of organisational policy.